The Pledge of Allegiance, as this issue goes to press, is illegal for children in the public schools of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state to recite, because it contains the words “under God.”  Two out of three judges on a panel of the U.S. Court of Appeals for the Ninth Circuit believe that the federal statute adding those two words to the pledge in 1954 was in violation of the First Amendment’s mandate: “Congress shall make no law respecting an establishment of religion.”

No ruling by any court in recent memory has been denounced as vehemently by politicians—both houses of Congress proceeded the next day to recite the pledge noisily, emphasizing the words “under God.”  The federal solons even sang “God Bless America” for good measure (indicating that the logic of the Ninth Circuit would also prohibit public-school children from singing that ditty or from carrying in their pockets coins with “In God We Trust” stamped on them).  The President quickly denounced the decision, as did prominent leaders in both political parties.  A few ACLU and rigid separation-of-Church-and-state types, who seemed incapable of understanding the general feeling that the pledge is more about simple patriotism than religion, praised the ruling and remarked, quite correctly, that it was in keeping with Supreme Court decisions barring public-school prayer, graduation invocations by local clergymen, and even student-led prayer at football games, as well as a plethora of other court decisions barring the display of the Ten Commandments or crèches on public property.

These anti-religion decisions, from the point of view of someone who believes that the Constitution ought to be interpreted according to the understanding of the First Amendment when it was framed, are all clearly wrong.  The First Amendment (which, by the way, was aimed only at preventing action by the federal government, not by the states, as it has been interpreted for the last couple of generations) was intended to prevent Congress from establishing a particular national religion, not to prevent Congress from expressing a preference for some religion over none.  As late as the middle of this century, it was commonly held (even by Supreme Court justices) that the United States was a “Christian nation,” and almost all of the writings of the Framers indicate that they believed a strong religious faith was necessary for good citizenship, for virtue, and for republican government itself.  Chronicles readers know well the Framers’ mantra that there could be no order without law, no law without morality, and no morality without religion.  There were, perhaps, some dissenters (Thomas Jefferson famously tried to prove that Christianity was not a part of the common law, for example, and James Madison believed that it was wrong for states to establish churches), but it is doubtful that even the two of them would have opposed the simple indication of classic piety in the Pledge of Allegiance.

Most believe that the panel’s majority will be overruled, either by the majority of the entire Ninth Circuit (hearing the case together, as they occasionally choose to do), or by the U.S. Supreme Court.  Indeed, since other federal courts, most notably the Seventh Circuit Court of Appeals (which covers Illinois, Indiana, and Wisconsin) had previously ruled that there was no First Amendment problem with the text of the pledge, the Supreme Court needs to decide which circuit got it right.  The consensus of constitutional scholars, up to and including liberal Harvard professor Laurence H. Tribe, is that a reversal is a sure thing, though nothing about First Amendment law these days is ever really certain.

The glee of those who would banish religion from the public square was short-lived, however, because the day after the Ninth Circuit’s pledge decision came down, the U.S. Supreme Court issued its long-awaited ruling in the Cleveland school-voucher case.  The Sixth Circuit had ruled Cleveland’s voucher plan unconstitutional because most of the publicly funded vouchers had been spent on religious schools (thus, according to the Sixth Circuit, entangling the state with the Church, in violation of the Establishment Clause).  But a five-person majority of the Supreme Court, consistent with their policy of giving the states and local governments discretion in matters of education, ruled that the program presented no Establishment Clause problems as long as the Cleveland parents who used vouchers had a choice of sending their children to nonreligious schools.  “Common sense,” Lincoln is said to have remarked, “is not particularly common,” but if it was missing from two of the three Ninth Circuit judges, it could at least still be found in five of the Supreme Court justices.